Crime Expands

Yet this narrowing of offenses has not freed us of the state's imposi­tions. Quite the contrary. Durkheim rightly pointed to how count­less behaviors had been shifted from the penal law's purview, but his anticipation that this move signaled the decline and obsolescence of the criminal code and repressive law in modern, complex societies was wide of the mark.⁷⁶ In other respects, crimes defined in the law have massively expanded.

Liberal democracies, even in their everyday, peacetime function­ing, have extended the law's compass, criminalizing ever wider swaths of behavior. Assault and larceny made up 85 percent of all ordinary crimes reported in preindustrial Europe.

Start with the simplest. New technologies have created behav­iors just waiting to be punished. Counterfeiting was not actionable before currency came into widespread use, or check bouncing before banks, not to mention money laundering. And of course the crimes associated with money have changed in tune with technologies of value transfer, from shaving the edges off coins to holding up cus­tomers at ATMs and committing digital bank fraud. Public urination could not be actionable before indoor plumbing. Shoplifting became more common as the goods were no longer hidden behind the mer­chant's counter. Mail fraud attended on the post. Towns policed who could inhabit them in the Middle Ages, but violations of immigra­tion law awaited the development of the nation-state. Before locks became widespread, everyone carried their valuables with them, and theft was largely petty larceny of consumables.⁷⁹ Pickpocketing increased with urbanization.⁸⁰ The invention of anesthesia brought great blessing, but it also created a class of drugs whose misuse was then made actionable. Traffic policing started as early as the seven­teenth century. Furious driving of horse-drawn carriages and even driving without reins were infractions in the nineteenth century, but that today's police would spend much of its time regulating cars was not foreseeable.⁸¹ A large section of the Virginia criminal code covers railroad crimes, which may not be much enforced any longer. But the offenses associated with automobiles (carjacking, joyriding, auto theft) have mushroomed. Driving back and forth in the same area (cruising or “repetitive unnecessary driving”) has gone from an inno­cent pleasure to a crime.⁸² Indeed, traffic policing has become a gate­way for authority's continued ingress into everyday life.

New business models have led to new crimes: forgery, insider trading, mail-order peculation, breach of trust, wire fraud. The emer­gence of corporations created new legal personae, which, at least in the Anglo-American realm, could be held liable for infractions of the law. More laws criminalize business behavior, with fewer due- process restrictions, than target the poor.⁸⁴ The growth of bureau­cracy spawned the vast field of white-collar crime. As a total of federal criminal prosecutions in the United States, such offenses rose from 8 percent in 1970 to 24 percent in 1983. Fraud has con­tinued to evolve and expand, chasing the possibilities for deception permitted by ever new and more sophisticated business practices.⁸⁵ The administrative complexity of modern polities allowed oppor­tunities for leverage, corruption, and blackmail that had to be recognized before they could be outlawed. Only in 1863 did the French forbid extorting hush money.⁸⁶ Price fixing and other abuses of monopolies, tax and securities fraud, and foreign bribery all eventually were attended by possible prison sentences.⁸⁷ Because the United States developed an equities market earlier than most nations, insider trading became a crime there by the 1930s, but not until later elsewhere. To regulate potentially dangerous consumer products, whether baby blankets, ski slopes, or airplanes, liability law mushroomed in the late twentieth century with an orgy of law­suits forcing manufacturers to internalize the costs of safety.⁸⁸

Formerly private relations have been made public and actionable. We smirk at the minute behavioral regulation of the early modern codes—forbidding sloth and adultery, for example.

Behaviors once relegated to the private sphere as part of personal morality have remerged as public concerns.

The paterfamilias's remit has narrowed, with the state extend­ing its wing over many functions that were once the family's pur­view. Women and children were emancipated into full legal status directly subject to the state, not to the husband and father. Domes­tic violence against children and spouses became a crime, no longer acceptable or considered somehow natural patriarchal conduct.⁹⁷ Tolerated by the Romans, infanticide became prosecuted by the Christian Church for moral reasons, then later by states as they expanded their claims to define who merited legal protection as subjects.⁹⁸ Already in the sixteenth century, births in England were registered, signaling official interest in the infant citizen.⁹⁹ School­ing was eventually made compulsory, and parents were punished for their children's truancy.

As the definition of property vastly expanded, so too did theft. Removing customary gleaning, pasturing, and other collective rights on common lands in the eighteenth century made those rural poor who continued what had once been legitimate activities now guilty of larceny. Property rights were continuously created in new realms, especially the ethereal. Not until the early eighteenth century did it count as stealing to palm off someone else's ideas or even exact words as your own. But after that, countless violations of intellectual property began to be enforced.¹⁰² The rights of persons to themselves expanded the harms others could do them. Unpro­tected by free-speech rights, classical age satirists in Greece did not attack their contemporaries for fear of being prosecuted for defa- mation.¹⁰³ Starting in the sixteenth century, slanderous, libelous, and other kinds of attacks on reputation became actionable in com­mon law. Developing rights of personality and publicity allowed prosecution of those who would harm (or use features of) others' individuality.¹⁰⁴ As globalization and multiculturalism increasingly juxtaposed different religions, blasphemy laws that once seemed to be fading with secularization and indifference have been revived.¹⁰⁵

Legal personalities, those with actionable rights, have also multi­plied. Whether unborn children could be plaintiffs and, if so, starting at which point in gestation varied with a given jurisdiction's abortion laws. Singling out attacks on pregnant women that caused damage to their fetuses enlarged or at least deepened the pool of potential plaintiffs.¹⁰⁶ Making femicide a crime in itself (fifteen countries and counting), with especially stringent penalties, increased the number of women victims. The expanding roster of licensed professions (now 18 percent of the US labor force) gave more practitioners a stake in having their uncertified colleagues prosecuted.¹⁰⁷ The status of who or what could be a plaintiff expanded beyond the human, too. Trusts, corporations, municipalities, ships, nation-states, and other inanimate entities have received enforceable rights. Animals used to be pursued for harms they may have committed, but those who hurt them are now held liable.¹⁰⁸ Our relationship to animals more generally has become evermore the law's business, whether for­bidding the keeping of pigs in big cities in the nineteenth century

or determining which kinds of dogs are valid pets.¹⁰⁹ And nature itself—rivers and forests, for example—has become a plaintiff.¹¹⁰

Technological, social, and economic developments may have driven the law to respond by expanding, but the legal system itself also unfolded luxuriously under its own steam. Long-forbidden actions grew like Jack's beanstalk. As a specific form of theft, embez­zlement emerged in English law in 1799, arising from a case where a bank clerk pocketed a customer's cash while noting it as deposited to the account-holder's credit. The customer was no worse off, but the bank had suffered a loss that existing law could not touch since the money had never actually been in its possession. From such humble beginnings, embezzlement expanded from a transgression that only those in certain specific relationships of trust could commit (a crime of betrayal) to a general offense applicable to anyone entrusted with property.¹¹¹

From the sixteenth century on, perjury grew to mirror the increas­ing use of oaths, now sworn by witnesses to deliver the certain testi­mony that earlier had been ensured by ordeals and torture.¹¹² Oaths ceased being reliant on adherence to a particular or, indeed, any reli­gion. At least in the common law nations, they became more com­monplace elements of bureaucratic practice, not just reserved for courtrooms. Tax declarations, for example, commonly require an oath to their accuracy. With no less than eighteen sections of the US Code now dealing with perjury, more citizens have become poten­tially liable to it.¹¹³ In the 1970s and 1980s, fraud expanded to cover circumstances where nothing was foregone or any laws violated, but where victims had nonetheless lost an “intangible right,” such as the duty of public officials to provide honest and faithful services. From a narrowly defined action not applicable even when someone kept property entrusted to them, larceny has enlarged and can now be committed even by actions once seen as innocent, such as keeping money paid out to one by mistake. Bribery expanded in the 1990s to encompass also the lesser offense of receiving illegal gratuities.¹¹⁴

Laws once intended for specific purposes have grown to include a smorgasbord of behaviors. Grober Unfug (disorderly conduct), defined in eighteenth-century Germany for use against noisome street urchins, was extended to include everything from carpet beating after-hours to press offenses to Social Democrats' distribu­tion of pamphlets.¹¹⁵ Treason broadened from collusion not just with enemy nations but also with nonstate actors, such as terror- ists.¹¹6 The right to free speech is certainly more generous now than in the era when most criticism of the authorities was action­able, not to mention the restrictions imposed by blasphemy. But in other ways its limits have stiffened with additional restrictions ranging from hate-speech prohibitions to the broader definition of libel.¹¹⁷ The right of public assembly has narrowed. The authorities tolerate less chaos than was allowed in eighteenth-century demon­strations and protests. Our earlier right of spontaneous assembly today requires all manner of permits and permissions, applied for beforehand.¹¹⁸

Even within their narrowed remit, modern penal codes still pun­ish a panoply of behaviors, ceding little ground to the broad police powers of the early modern period. US states criminalize many acts that few citizens contemplate in the first place: selling untested spar­klers, exhibiting deformed animals, leaving animal carcasses on pub­lic roads, cheating at cards, provoking dogs to fight, selling perfume as a beverage, training bears to wrestle, and frightening pigeons away from devices meant to capture them. Forbidding the removal of fire-safety tags from mattresses is often given as an example of allegedly excessive criminalization.¹¹⁹ The concept of police power expressed the early modern state's expansive authority over its sub­jects but is usually thought to have been superseded by the rule of law with the rise of the modern Rechtsstaat, a state based on law. In fact, far from being anachronistic, such police powers continue in parallel to the penal code, now sometimes in the guise of adminis­trative or regulatory law.¹²⁰

Criminalizing proxy behaviors to get indirectly at underlying acts has bloated the penal code. Driving underage, driving while intoxicated, driving too fast, driving with defective equipment, and so forth are all separate crimes (implicit endangerment offenses) intended to punish dangerous locomotion without giving traffic police carte blanche to haul any motorist into court.¹²¹ It took years after automobiles became common for speed limits to be instituted at all since motorists insisted that police worry instead about unsafe— not necessarily fast—driving.¹²² That was but a blip on a broader development that has criminalized largely all automotive behavior. With driverless cars and the elimination of noisome human wetware from the transportation process, perhaps such laws will fade. Prohib­iting proxy behaviors also motivates laws that forbid the possession of drug paraphernalia, tools useful in burglaries, or knives suitable for attacks.

Because penal codes are hemmed in by due process, authorities have also marshaled civil and other noncriminal codes to prosecute offenses. In California, almost as many acts have been criminalized outside the penal code as within it, including school principals fail­ing to use required textbooks, teachers neglecting to bring first-aid kits on school outings, and citizens gambling on the results of elec­tions. In Minnesota, 83 percent of recent crimes created by statute have been codified outside the penal code, 91 percent in Okla­homa.¹²³ The civil law requires only a lower standard of evidence, allowing greater flexibility and prosecutorial follow-through. Civil law is routinely used against offenses such as insider trading, ter­rorism, and pedophilia. Store owners, for example, can prosecute via criminal law for the return of stolen items. Using civil recov­ery laws, they can also collect up to five times their value.¹²⁴ Civil asset forfeiture—the confiscation of property allegedly involved in crime—has long historical roots in English law, not to mention bib­lical precedence. As of the 1980s, it was put to use again. In effect, it punishes while enforcing, inflicting drastic sanctions on those not yet convicted of crimes, such as drug selling or money laun­dering, while forcing them to prove their innocence, bereft of the penal code's protections.¹²⁵ More generally, authority has informally expanded the limits of its executory powers by punishing outside the law. Extrastatutory harassment, including death, is an unac­knowledged weapon in the state's arsenal. Thousands have been killed in pacifying the favelas of Rio de Janeiro or in fighting drug use in the Philippines. In El Salvador, ten times as many criminals as police die in gunfire with each other, a figure that suggests routin­ized extralegal executions. In 2015, forty times as many US residents were killed by police than legally executed.¹²⁶

Law has begun to punish formerly legal behaviors. Victimless- crime laws ban perceived moral failings even though arguably no one is harmed. Knowing of a possible crime without reporting it has become an offense in its own right. Misprision of treason, or failure to report plots or political crimes, was criminalized in late eighteenth­century Europe.¹²⁷ That offense has now expanded. Crimes of omis­sion or the absence of action would once have seemed a contradiction in terms. Today, not reporting a crime or failing to prevent children in your care from committing one is actionable.¹²⁸ Good Samaritan laws punish those who do not help others in distress. Similarly, not protecting someone under our care has become actionable in Anglo- American common law. Such expansion of law's remit is clear in the common law nations, where protecting against harm is the basis of the penal code. In the civil law tradition, the tendency is, if anything, stronger. In Germany, the criminal law protects legal goods (Rechts- gtiter), which cover—however much the concept harm may have recently expanded—an even wider spectrum: everything from traffic safety to the environment and international peace.¹²⁹

More generally, the law has also expanded its remit by moving from acts to thoughts. It once punished only deeds already commit­ted, hoping for deterrence by inflicting public agonies on perpetra­tors. It has since begun enforcing law preventively—anticipating and punishing action not yet undertaken. Intent is thus penalized much like act. New thought crimes have emerged, even as formerly crimi­nalized ideas such as blasphemy and sacrilege became legal. In the seventeenth century, courts began punishing defendants not for the crime itself but simply for being suspected of having committed it (Verdachtsstrafe). Since the offense was a lesser one, sentencing was adjusted accordingly to something short of death.¹³⁰ Once endanger­ing (posing a risk but not yet actualizing it) became a crime in its own right, the mere possibility of harm became actionable.¹³¹ Inchoate crimes, which target intent, in turn massively expanded the range of outlawed actions. Attempts, conspiracy, and solicitation were added to their underlying acts as new crimes, thus quadrupling the num­ber of substantive offenses. Merely talking about committing a crime, even if nothing came of it, could be punishable. If a transgression did result, conspiracy was added as an additional offense to the act itself. More than a quarter of all federal criminal prosecutions in the US now involve conspiracy.¹³² In the United Kingdom, incitement (the British version of solicitation) blossomed into the new wide-ranging offenses of encouraging or assisting crime.¹³³ People were sent to prison for second-order inchoate crimes, such as conspiracy to solicit. To gather tools usable in burglary could be prosecuted as an attempt to attempt to attempt to commit larceny—three levels of offense.¹³⁴ Hate-crime laws increased the penalties for offenses motivated by a dislike of protected categories of citizens. They thus added a punitive premium for the emotion that sparked what would otherwise have been a commonplace transgression.¹³⁵

Along with actual perpetrators, accessories and accomplices to crimes have increasingly been held liable, too—those who par­ticipated only vicariously or indirectly in the offense or knew of it without reporting it. Who counts as an accomplice has steadily broadened. Sometimes the intent of this expansion has been to spare perpetrators. In postwar Germany, various levels of accomplice liability were carefully parsed to relieve Nazi criminals of harsh sen­tences.¹³⁶ But in general the intent has been to rope in a larger circle of offenders. A horrific court case from sixteenth-century England punished the husband who tried to kill his wife with a poisoned apple but saw his daughter die instead as the treat was passed along to her. But the friend who had counseled him on how to murder and supplied the poison went free since the child's death had not been his intent.¹³⁷ Such fine distinctions were quickly subsumed. Already during the French Revolution, accomplices were punished as severely as those whom they helped offend. Up to this point, Eng­lish law had not allowed prosecution of accessories except where the main offender had also been convicted, but as of 1848 they could be charged independently and, indeed, as principals.¹³⁸

Jurisprudence has formulated a spectrum of complicity: direct and indirect participants, solicitors and facilitators, as well as acces­sories before and after the fact—those who obstructed justice, those who received stolen property, and the like.¹³⁹ An ecosystem of crim­inality developed around the offense. Accomplices could be pun­ished even for trivial and tangential assistance: preparing food for the offender, holding his child, lending a smock.¹⁴⁰ In the common law nations, many counted as accomplices because all killings com­mitted during a felony were deemed murders. Thus, in 2007 a man was jailed for life because friends used his car to commit a murder­robbery while he was asleep somewhere else, dead drunk.¹⁴¹ Those who threatened but not did commit harm began to be punished. So were those who did nothing. When second offenses flowed nat­urally from the first, an accomplice to the initial crime automati­cally counted as participating in the latter.¹⁴² Outlawing conspiracy allowed the authorities to prosecute groups for doing something that if undertaken individually would have been legal. French civil servants were welcome to resign individually but not in groups. A solitary walk was unobjectionable; many simultaneous walks became an illegal demonstration. Two people would be much more leni­ently sentenced if each one sold marijuana individually than if they hawked the same amount together.¹⁴³

Law has expanded over the past many centuries. America has begun debating overcriminalization, the bloating of the penal code, and the metastasization of criminal punishments throughout stat- ute.¹⁴⁴ If nothing else, multiplying and dispersing sanctions blur the moral message of right and wrong that law should convey. Indeed, they impede citizens from even knowing what rules they are expected to follow.¹⁴⁵ The survey here shows that evermore law is a long and broad development, not a problem only in contemporary America. Already in the first century BCE, Cicero complained of more law, less justice. Nor has the march toward more laws and more behav­iors punished been uniform and inexorable. Occasional reverses have been booked. Early in the new millennium, the US narrowed the defi­nition of government corruption, making it harder to prosecute.¹⁴⁶ White-collar crime—insider trading, for example—may have been cir­cumscribed and therefore prosecuted less tirelessly in recent years.¹⁴⁷ Nonetheless, the overall direction is unmistakable.

This trend poses a paradox. Levels of violence and disorder have dropped dramatically over the past several centuries. The state has monopolized violence, building an evermore efficient apparatus of enforcement and punishment. And citizens have ever better con­trolled themselves, self-regulating their psyches as required by mod­ern metropolitan life. Yet the number of crimes they are potentially liable for has increased. Even as the state has become a more subtle, regular, and ubiquitous sanctioner, even as citizens are evermore socialized into correct conduct, the number of laws and the range of behaviors they formally punish have also mushroomed. The need for law seemingly declined, yet its amount and sway increased. Why? Before we can answer that, we need an idea of what held true before the state began throwing its weight about.